Cornell Law School Logo - white on transparent background

Vol. 107, Issue 6


AEDPA Repeal

Brandon L. Garrett, L. Neil Williams Jr. Professor of Law, Duke University School of Law and Director, Wilson Center for Science and Justice & Kaitlin Phillips, J.D., 2021, Duke University School of Law

1 Sep 2022

Given how pressing the problem has become, and the real interest in reforms to promote access to justice, this Article takes a different tack than prior habeas reform work: to restore habeas corpus to its pre-AEDPA and pre-Rehnquist court state, in which a federal court can review claims and reach their merits. The approach would preserve flexibility at the district court level and remove the many layers of procedural complexity that the Supreme Court and then Congress have erected. We believe that deep changes are needed, and in that, we agree with judges and scholars that have for some time proposed such changes in the writ. As we describe, AEDPA was enacted as a culmination of more than two decades of complex Supreme Court law that had already limited access to federal habeas corpus. While AEDPA incorporated some of those procedural rulings, the concern would be that should AEDPA be repealed, even in part, those court-made restrictions could be interpreted to supplant AEDPA restrictions. Clear statutory language will be needed to ensure that the Court does not frustrate Congress, as it has in the past, by supplementing statutory text in order to limit constitutional remedies. We do not mean to suggest that the various proposals set out here are exhaustive. Our goal is to promote careful considerations of alternatives to the present-day set of federal habeas corpus statutes and accompanying judicial interpretation.

In Part I, below, we summarize the background concerning the enactment of AEDPA, the preexisting and companion restrictions adopted by the U.S. Supreme Court, and we review examples of noteworthy cases in which AEDPA played a central role. In Part II, we walk through key sections of AEDPA and outline proposals for replacing or repealing key language, including by discussing implications for the relevant U.S.Supreme Court doctrine. In Part III, we situate these proposals in broader policy and scholarly efforts to rethink federal habeas corpus and federal legislative efforts to improve constitutional litigation more broadly.

To read this Article, please click here: AEDPA Repeal.